M-65881

Synopsis

Motion to strike affirmative defenses and motion to "dismiss" demand for bill
of particulars were denied.

Case Information

UID:

2002-016-110

Claimant(s):

CHRISTOPHER EDWARDS

Claimant short
name:

EDWARDS

Footnote (claimant name)
:

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name)
:

Third-party
claimant(s):

Third-party
defendant(s):

Claim number(s):

106373

Motion number(s):

M-65832M-65881

Cross-motion
number(s):

Judge:

Alan C. Marin

Claimant's
attorney:

Christopher Edwards

Defendant's
attorney:

Eliot Spitzer, Attorney GeneralBy: James E. Shoemaker, AAG

Third-party defendant's
attorney:

Signature date:

October 30, 2002

City:

New York

Comments:

Official citation:

Appellate results:

See also (multicaptioned
case)

Decision

In his underlying claim, Christopher Edwards asserts that defendant acted
wrongly in connection with the issuance to him of a disciplinary ticket and the
subsequent hearing thereon. Motion No. M-65832 is Mr. Edwards' motion for an
order striking the State's affirmative defenses. Motion No. M-65881 is his
motion for an order "dismiss[ing] [the State's] Demand for [a] Bill of
Particulars." With regard to affirmative defenses, the State alleges that: (1)
the claim fails to state a cause of action against defendant; (2) that
defendant's actions were privileged as being judicial, quasi-judicial or
discretionary determinations made by agents or employees of defendant acting
within the scope of their duties as public officials; and (3) that any injuries
or damages suffered by claimant were caused in whole or part or were contributed
to by the culpable conduct, including assumption of risk, of claimant.

Affirmative defenses are not dispositive of a claim. Like the allegations in a
claim, they are merely assertions made by a party. There is no reason to strike
affirmative defenses in the absence of prejudice. See., e.g.,
Weinstein-Korn-Miller, NY Civ Prac ¶3018.14 at 30-410. Claimant has
alleged no prejudice in this case, nor has he asserted that any scandalous
matter is contained in defendant's pleading. See CPLR 3024. It should be noted
that in claimant's affidavit in support of this motion, he makes a request for
an order granting him summary judgment. No showing has been made by claimant at
this time that he is entitled to such relief.

With regard to Edwards' motion to "dismiss" the State's demand for a bill of
particulars, he seems to assert that the demand is inapplicable because it
relates to physical injury. However, he fails to annex a copy of such demand to
his motion papers.[1] In its opposition papers,
defendant asserts that its demand for a bill of particulars contains a few
questions regarding the upcoming trial with the bulk of the demand relating to
the damages claimant allegedly sustained as a result of defendant's actions,
noting that Edwards alleges in his claim that he was damaged in the amount of
$661,885.35. As defendant points out, if a particular question is not
applicable to claimant, claimant can so specify. In sum, on the record before
me, I am unable to find that defendant's demand for a bill of particulars is
improper.

For the foregoing reasons, having reviewed the parties'
submissions[2], IT IS ORDERED that motion no.
M-65832 be denied and motion no. M-65881 be denied.

October 30, 2002New
York, New York

HON. ALAN C. MARINJudge of the Court of Claims

[1]As exhibit A to his bill of particulars
motion, claimant annexes a "Notice of Motion to Dismiss the Defendant's
Affirmative Defense" with an affidavit in support. There are two documents
entitled exhibit B: the first is a Woodbourne Correctional Facility memorandum
regarding "Mandatory Callout Medical" and the second is a copy of the
verification from defendant's answer.

[2]The following were reviewed on motion no.
M-65832: claimant's notice of motion with affidavit in support and exhibits
A-D; and defendant's affirmation in opposition. The following were reviewed on
motion no. M-65881: claimant's notice of motion with affidavit in support,
exhibit A and two exhibit B's; and defendant's affirmation in opposition.